Maha'ulepu v. Land Use Com'n, 13764

• Decision Date: 09 April 1990
• Docket Number: No. 13764,13764
• Citation: 790 P.2d 906,71 Haw. 332
• Parties: Malama MAHA'ULEPU, Intervenor-Appellant, v. LAND USE COMMISSION, State of Hawaii, Planning Commission, County of Kauai, Ainako Resort Associates, Grove Farm Properties, Inc., and Planning Department, County of Kauai, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 906

790 P.2d 906

71 Haw. 332

Malama MAHA'ULEPU, Intervenor-Appellant, v. LAND USE COMMISSION, State of Hawaii, Planning Commission County of Kauai, Ainako Resort Associates, Grove Farm Properties, Inc., and Planning Department, County of Kauai Defendants-Appellees.

No. 13764.

Supreme Court of Hawai'i.

April 9, 1990.

Syllabus by the Court

1. Ordinarily, deference will be accorded a decision of an administrative agency acting within the realm of its expertise, and review of a special permit approval is limited to discerning whether the

agency committed an error of law or abused its discretion.

2. The State Land Use Commission is not authorized to issue a special permit for a use within an agricultural district unless the proposed use is permissible under Hawaii Revised Statutes (HRS) Chapter 205.

3. HRS §§ 205-4.5(b) and 205-6 provide authority for the issuance of a special use permit for a golf course use on agricultural land with soil classified as Overall Productivity Rating Class A or B, provided the use is "unusual and reasonable" and promotes the objectives of HRS Chapter 205.

4. Interpreting HRS § 205-2 (1985) as an implied repeal of authority to grant a special use permit for the construction of a golf course on agricultural land with soil classified as Overall Productivity Rating Class A or B would bring that section into conflict with HRS § 205-4.5(b), which allows such permits provided the use is "unusual and reasonable" under HRS § 205-6.

5. Repeals by implication are not favored, and if effect can reasonably be given to two statutes, it is presumed that the earlier statute did not repeal the later.

6. The legislative history of the amendment to HRS § 205-2, Act 298 (1985), does not yield evidence that the legislature intended to repeal the authority for a special use permit for a golf course on A or B rated land. Because Act 298 merely reiterated the provisions of HRS § 205-4.5, which authorized such permits, HRS § 205-2 as amended cannot be construed to intend a prohibition on such permits.

7. Deference is accorded an administrative agency's interpretation of its own procedural rules unless a decision is clearly erroneous or inconsistent with the underlying legislative purpose.

Stephen Levine, Lihue, for appellant Malama Maha'Ulepu.

David L. Callies (Dennis M. Lombardi and David Allan Feller, of counsel, Case & Lynch, and Bruce L. Lamon and Carol A. Eblen, of counsel, Goodsill, Anderson, Quinn & Stifel, with him on the brief), Honolulu, for appellees Ainako Resort Associates and Grove Farm Properties, Inc.

Benjamin M. Matsubara and Edsel M. Yamada, of counsel, Matsubara, Lee & Kotake, on the briefs, Honolulu, for appellee State Land Use Comm'n.

Michael J. Belles, County Atty., and Peter M. Wilkens, Deputy County Atty., and Max W.J. Graham, Jr. and Lorna A. Nishimitsu, Sp. Counsel, on the briefs, Lihue, for appellees Planning Comm'n and Planning Dept.

Before LUM, C.J., PADGETT, HAYASHI and WAKATSUKI, JJ., and NAKAMURA, Retired Justice, in Place of MOON, J., Recused.

LUM, Chief Justice.

Appellant Malama Maha'ulepu (Malama), an unincorporated association, challenges a Land Use Commission decision affirming the grant of a special use permit for the construction of a golf course on prime agricultural land in Poipu, Kauai. The question raised in this appeal is whether the provisions of Chapter 205, Hawaii Revised Statutes (HRS) prohibit the county planning commissions and the State Land Use Commission from issuing special use permits for golf courses on prime agricultural lands classified by the Land Study Bureau as Productivity Rating Class A or B. We hold that Chapter 205 does provide the authority for such permits, and we affirm.

I.

In April 1988, Appellees Ainako Resort Associates and Grove Farm Properties (Ainako) petitioned the Kauai County Planning Commission (KPC) for a special use permit to construct a 210-acre golf course on land zoned for agricultural use and classified by the Land Study Bureau's Detailed Land Classification as Overall (Master) Productivity Rating Class B. ¹

After the KPC announced public hearings, Malama petitioned to intervene in opposition to the permit. The petition stated that members of Malama used the land and adjacent coastal areas. Malama alleged that construction of the golf course would have negative environmental, ecological and aesthetic consequences. The KPC granted the petition to intervene on May 25, 1988.

The KPC held several public hearings on the special permit application between May and August of 1988, and approved the special use permit on August 11, 1988.

HRS § 205-6 (1985) and Hawaii State Land Use Commission (LUC) Rule 15-15-95 require automatic review by the LUC of a special permit granted for a parcel of land greater than 15 acres. The LUC reviews the special permit based upon the record developed in the planning commission proceeding and upon the memoranda and arguments before the LUC. Pursuant to these provisions, the KPC forwarded the record to the LUC. ²

The LUC permitted Malama to appear as a party to oppose the permit. The LUC heard oral arguments on the permit on September 29, 1988. The commission approved the permit, issuing its Findings of Fact, Conclusions of Law, Decision and Order on November 23, 1988.

Malama filed Notice of Appeal to the Fifth Circuit on December 1, 1988. The court affirmed the issuance of the special permit by written order filed March 16, 1989, and this appeal followed.

II.

Ordinarily, deference will be given to decisions of administrative agencies acting within the realm of their expertise, Outdoor Circle v. Harold K.L. Castle Trust Estate, 4 Haw.App. 633, 639, 675 P.2d 784, 789 (1983), and review of special permit approvals is limited to discerning whether the administrative agencies committed errors of law or abused their discretion in granting the permit. Neighborhood Board No. 24 (Waianae Coast) v. Land Use Comm'n, 64 Haw. 265, 639 P.2d 1097 (1982). However, by arguing that the Kauai County Planning Commission and the LUC exceeded the scope of their authority under HRS Chapter 205, Malama raises an issue of statutory interpretation. Conclusions of law by an administrative agency that do not involve agency rules are reviewed de novo. International Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 322, 713 P.2d 943, 950 (1986).

The LUC's substantive authority to grant a special permit derives solely from the provisions of HRS Chapter 205 governing land use. The LUC may exercise only those powers granted to it by statute, Stop H-3 Ass'n v. State Dep't of Transp., 68 Haw. 154, 706 P.2d 446 (1985), and may not grant a special permit unless the proposed use is permissible under Chapter 205. Neighborhood Board No. 24 (Waianae Coast) v. State Land Use Comm'n, 64 Haw. 270-71, 639 P.2d at 1102.

In this case, the authority to issue a special permit to Appellee Ainako derived from HRS §§ 205-4.5 and 205-6 (1985). Section 205-4.5(a) provides that golf courses are not a permitted use on A and B rated agricultural lands. ³ Section 205-4.5(b) nonetheless allows those uses for which special permits may be obtained under § 205-6. Section 205-6 vests in the planning commissions the authority to issue special permits for uses that, while not otherwise permitted within agricultural districts, are nonetheless "unusual and reasonable" uses that promote the effectiveness and objectives of Chapter 205. Neighborhood Board No. 24 (Waianae Coast) v. Land Use Comm'n, 64 Haw. at 269-70, 639 P.2d at 1101. The Planning Commission found that the proposed golf course use was an unusual and reasonable use of the land, and Malama does not challenge that finding on appeal.

Malama contends, however, that the legislature impliedly repealed any such authority under §§ 205-4.5(b) and 205-6 by passing Act 298 in 1985, which amended HRS § 205-2 to read as follows:

Agricultural districts shall include activities or uses as characterized by ... open air recreational facilities, including golf courses and golf driving ranges, provided that they are not located within agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B. (Emphasis added to illustrate amendatory language.)

Malama argues that the plain language of this amendment is prohibitory, and so must be read to deny the local and state planning commissions authority to grant special permits for golf courses on A and B rated lands.

Interpreting the amendment to § 205-2 as a proscription against special permits for courses on A and B rated lands would bring § 205-2 into conflict with § 205-4.5(b), which allows such permits under § 205-6 so long as they are "unusual and reasonable." Amendatory language that merely reiterates the language of a pre-existing parallel provision must ordinarily be read in accord with the interpretation given that provision, and not in conflict with it. Further, the general rule is that "repeals by implication are not favored and that if effect can reasonably be given to two statutes, it is proper to presume that the earlier statute is intended to remain in force and that the later statute did not repeal it." State v. Gustafson, 54 Haw. 519, 521, 511 P.2d 161, 162 (1973). In order to determine the intended relationship between these statutes, we look to their legislative history.

Before 1976, prime agricultural lands rated A and B by the Land Study Bureau were not distinguished from other less productive lands rated C, D, E, and U. HRS § 205-2 (1976), which outlined appropriate uses in agricultural...